Welcome to BreathableBaby, LLC’s (“BreathableBaby”) Web site Terms and Conditions of Use (the “Agreement”) for the www.breathablebaby.com web site (“Site”). This Agreement describes the terms and conditions and the general principles applicable to your use of the Site.
1. Service Terms
a. Use of Site. BreathableBaby grants you a limited license to access this Site provided you do not modify, alter or download (other than page caching) any portion of it. The permission granted to you shall terminate automatically if you breach any of the terms and conditions set forth in this Agreement. BreathableBaby reserves the right to modify or remove any materials or products listed on the Site at any time without notice.
b. Prohibited Use of Site. You shall not make any commercial use of this Site or its contents, product listings, descriptions, or prices. You further agree not to download or copy any account information for the benefit of any merchant or use any data mining, robots, or similar data gathering and extraction tools. This Site or any portion of this Site may not be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without express written consent of BreathableBaby. You agree not to interfere, disrupt or attempt to gain unauthorized access to other accounts that use this Site or any other computer network. You further agree not to disseminate, store or transmit viruses, trojan horses or any other malicious code or program or engage in any other activity deemed by BreathableBaby to be in conflict with the spirit or intent of this Agreement.
c. Equipment. You shall be solely responsible for providing, maintaining and ensuring compatibility with the Site including all hardware, software, electrical and other physical requirements for your use of this Site, including, without limitation, telecommunications, internet access connections, web browsers or other equipment, programs and services required to access and use the Site.
a. Security. You shall be solely responsible for any authorized or unauthorized access to your account by any person. You agree to bear all responsibility for the confidentiality of your password and all use, purchases, or charges incurred from use of the Site with your password. If you use this Site, you are responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. BreathableBaby reserves the right to refuse service, terminate accounts, remove or edit content, or cancel orders in their sole discretion.
d. Accessibility. You agree that from time to time this Site may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which BreathableBaby may undertake from time to time; or (iii) causes beyond the control of BreathableBaby or which are not reasonably foreseeable.
3. Ownership of Intellectual Property
a. Trademarks. Certain trademarks, service marks and logos (the “Trademarks”) used and displayed on this Site are registered and unregistered Trademarks owned by BreathableBaby. Third-party trademarks, trade names, product names and logos, contained on this Site may be the trademarks or registered trademarks of their respective owners. Under no circumstances may you use or copy any of the Trademarks. Nothing herein should be construed as granting any license or right to use any Trademark displayed on this Site without the express written permission of BreathableBaby. You may not frame or utilize framing techniques to enclose any Trademarks, brand names, logos, or use any meta tags or any other “hidden text” utilizing BreathableBaby’s Trademarks without the express written consent of BreathableBaby. Any unauthorized use terminates the permission or license granted by BreathableBaby.
b. Copyrighted Works. All content contained on this Site, including, but not limited to, images/video, photos, electronic art, animations, graphics, sounds/audio, information and data, communications programs, Internet links, electronic mail services, and user interfaces, executable code, and data formatted, organized, and collected in a variety of forms, including layouts, pages, screens, directories, and databases is exclusively owned by BreathableBaby. You agree that you will not copy, reproduce, modify, alter, create derivative works from, distribute, or publicly display any content (except for your personal non-commercial use) from the Site without the prior express written permission of BreathableBaby and the appropriate third party as applicable. No rights in the design of BreathableBaby‘s products, or designs incorporated in such products, shall pass to you. You agree not to copy or reproduce, or cause to be copied or reproduced, either directly or indirectly, BreathableBaby‘s products, product designs, designs incorporated in such products, or product packaging.
4. Product Descriptions. BreathableBaby attempts to be as accurate as possible. However, BreathableBaby does not warrant that product descriptions and images or other content on this Site are accurate, complete, reliable, current, or error-free. Although BreathableBaby has made every effort to display and describe the likeness of each product (including, without limitation, colors, sizes, images and designs) as accurately as possible, it is possible that the displayed likeness of the products will depend upon the available graphic image as well as the quality of your monitor. BreathableBaby cannot guarantee that the Site or your monitor will accurately portray the actual likeness of the products. We reserve the right to correct any errors, inaccuracies or omissions and to change or update information at any time without prior notice (including after you have submitted your order). We apologize for any inconvenience this may cause you. Products displayed on this Site may be out-of-stock or discontinued and subject to change without notice. The product images shown are intended for representational purposes only and BreathableBaby reserves the right to substitute a similar image for the one described in the product information in the event an actual image of the product cannot be provided. BreathableBaby products displayed on the Site are available in select stores in the United States and select foreign markets while supplies last. In some cases, merchandise displayed for sale on the Site may not be available in all stores. The prices displayed on the Site are quoted in U.S. Dollars and are valid and effective only in the United States for purchases made through the Site. Please send any concerns regarding BreathableBaby’s products or services to email@example.com or call 877-827-4442.
5. Comments and Submissions All comments, feedback, suggestions, ideas, and other submissions offered or submitted to BreathableBaby in connection with your use of this Site (collectively, “Comments”) shall comply with the terms of this Agreement. Any Comment that you post to the Site will be considered non-confidential and non-proprietary. By providing any Comments on the Site, you grant BreathableBaby and its affiliates and service providers, and each of their and our respective licensees, successors, and assigns the right to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any such material for any purpose. You represent and warrant that (1) you own or control all rights in and to the Comments and have the right to grant the license granted above to BreathableBaby and its affiliates and service providers, and each of their and our respective licensees, successors, and assigns; and that (2) all of your Comments do and will comply with the terms of this Agreement. You understand and acknowledge that you are responsible for any Comments you submit or contribute, and you, not BreathableBaby, have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness. BreathableBaby is not responsible or liable to any third party for the content or accuracy of any Comments posted by you or any other user of the Website. Further, you acknowledge that BreathableBaby is under no obligation to: (1) maintain any Comments in confidence; (2) pay you any compensation for any Comments; or (3) respond to any Comments. You agree that Comments submitted by you will not violate any right of any third party, including copyright, trademark, privacy or other personal or proprietary right(s). You further agree that Comments submitted by you will not be or contain libelous or otherwise unlawful, abusive or obscene material. You are and shall remain solely responsible for the content of any Comments you make.
7. BreathableBaby Linking Policy. Any web site that links to the Site: (a) must not frame or create a browser or border environment around any of the Content of the Site; (b) may link to, but not replicate, the Content; (c) must not imply that BreathableBaby or the Site is endorsing or sponsoring it or its products, unless BreathableBaby has given its prior written consent; (d) must not present false information about BreathableBaby or its products or services; (e) must not use any BreathableBaby Trademarks without the prior written permission from BreathableBaby; and (f) must not contain content that could be construed as distasteful, offensive or controversial. By linking to any of the Site, you agree that you do and will continue to comply with these linking requirements and this Agreement. Notwithstanding anything to the contrary contained in this Agreement, we reserve the right to deny permission to link to the Site for any reason in our sole and absolute discretion.
8. Disclaimer of Warranties
BREATHABLEBABY AND ITS AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS, ASSIGNS, AND AFFILIATES PROVIDE THIS SITE AND PRODUCTS OFFERED ON THIS SITE “AS IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED AND EXPRESSLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
BREATHABLEBABY AND ITS AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS, ASSIGNS, AND AFFILIATES DO NOT WARRANT THE OPERATION OF THIS SITE OR THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS INCLUDED ON THIS SITE OR THAT THE SITE WILL BE UNINTERRUPTED OR ERROR FREE. YOU EXPRESSLY AGREE THAT YOUR USE OF THIS SITE IS AT YOUR SOLE RISK. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, BREATHABLEBABY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BREATHABLEBABY DOES NOT WARRANT THAT THIS SITE, OR ITS SERVERS, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
9. Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL BREATHABLEBABY OR ITS PARENT COMPANY, AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS, ASSIGNS, AND AFFILIATES BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SERVICES AND PRODUCTS OFFERED ON THIS SITE, INCLUDING, WITHOUT LIMITATION, YOUR USE OR INABILITY TO USE THE SITE, ANY CHANGES TO OR INACCESSIBILITY OF THE SITE, DELAY, FAILURE, UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY TRANSMISSION OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, ANY TRANSACTION OR AGREEMENT ENTERED INTO THROUGH THE SITE, OR ANY DATA OR MATERIAL FROM A THIRD PERSON ACCESSED ON OR THROUGH THE SITE, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE.
SOME STATES PROHIBIT THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THUS, THIS LIMITATION OF LIABILITY MAY NOT APPLY TO YOU.
10. Release and Indemnification
a. Release. In the event that you have a dispute with a purchase or the manufacturer of any products or provider of services offered on this Site, you agree to release BreathableBaby and its directors, officers, employees and agents from all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
b. Indemnification. You agree to indemnify, hold harmless and defend BreathableBaby and its directors, officers, employees and agents from and against any action, cause, claim, damage, debt, demand or liability, including reasonable costs and attorney’s fees, asserted by any person, arising out of or relating to: (a) this Agreement; (b) your use of this Site, including any data or work transmitted or received by you; and (c) any prohibited use of the Site as set forth in Section 1(b).
This Agreement is effective upon your acceptance as set forth herein and shall continue in full force until terminated. BreathableBaby reserves the right, in its sole discretion and without notice, at any time and for any reason, to: (a) remove or disable access to all or any portion of the Site; (b) suspend your access to or use of all or any portion of the Site; and (c) terminate this Agreement without notice at any time for any reason.
a. Amendment. BreathableBaby shall have the right, at any time and without notice, to add to or modify the terms of this Agreement. Your access to or use of the Site after the date such amended terms are delivered to you shall be deemed to constitute acceptance of such amended terms.
b. Waiver. No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof. No waiver shall be binding unless executed in writing by the party making the waiver.
c. Severability. If any provision of this Agreement is determined to be illegal or unenforceable, then such provision will be enforced to the maximum extent possible and the other provisions will remain fully effective and enforceable.
d. Notice. All notices shall be in writing and shall be deemed to be delivered when sent by e-mail to either party’s last known e-mail address, respectively. You hereby consent to notice by e-mail. All notices shall be directed to the parties at the respective addresses given above or to such other address as either party may, from time to time, provide to the other party.
e. Law. This Agreement is made in and shall be governed by the laws of the State of Minnesota without reference to conflicts of laws.
f. Forum. All actions, claims or disputes arising under or relating to this Agreement shall be brought in the federal or state courts in the State of Minnesota. The parties irrevocably submit and consent to the exercise of subject matter jurisdiction and personal jurisdiction over each of the parties by the federal and/or state courts in the State of Minnesota. The parties hereby irrevocably waive any and all objections which any party may now or hereafter have to the exercise of personal and subject matter jurisdiction by the federal or state courts in the State of Minnesota and to the laying of venue of any such suit, action or proceeding brought in any such federal or state court in the State of Minnesota.
g. Process. The parties irrevocably submit and consent, and irrevocably waive any and all objections which any party may now or hereafter have, to process being served in any such suit, action or proceeding referred to in the preceding subsection pursuant to the rules of the applicable court, including, without limitation, service by certified or registered mail, return receipt requested. No provision of this section shall affect the right of any party to serve process in any manner permitted by law or limit the right of any party to bring suits, actions or proceedings to enforce in any lawful manner a judgment issued by the state or federal courts of the State of Minnesota.
h. Headings. The captions and headings of this Agreement are included for ease of reference only and will be disregarded in interpreting or construing this Agreement.
i. Survival. The terms and provisions of Sections 3, 7, 8, and 9 shall survive any termination or expiration of this Agreement.
j. Entire Agreement. This Agreement constitutes the complete and exclusive statement of the agreement between the parties and supersedes any and all prior or contemporaneous communications, representations, statements and understandings, whether oral or written, between the parties.